Citation Nr: 21010732 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-09 937 DATE: February 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of lumbar spine (claimed as low back) is remanded. REASONS FOR REMAND The Veteran had active service with the Marine Corps from June 1971 to June 1973 and from February 1980 to March 1982, and with the Coast Guard from May 1974 to April 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of lumbar spine (claimed as low back) is remanded. The Veteran contends that his degenerative joint disease of the lumbar spine (claimed as low back) is more severe than his current rating. In December 2020, the Veteran testified at a Board hearing regarding his back condition. The Veteran’s representative indicated that there was a private examination submitted on October 20, 2020, associated with the record that would support an increase for the Veteran’s back condition. The Veteran testified that he has other conditions that were caused by the back disability that are receiving higher ratings, and he does not understand why his back disability only warrants a 10 percent rating. The Veteran testified that he has severe flare-ups 4-6 times a year, and cannot get to the VA, he would have to call an ambulance. There are times he cannot get out of bed. He also testified that he has it in both legs sometimes. The Veteran has numbness and a lack of sensation, on his back, but feels “horrific pain.” The Veteran cannot mow the grass, shovel snow, and has difficulty going up and down stairs. The Veteran testified that the VA is not doing any in-person examinations now. In July 2020 the Veteran’s private examiner provided the Veteran’s test results for his lumbar spine condition. The examiner stated that the Veteran’s “active pain free range of motion of the lumbar spine measurements” include; flexion 12 degrees; extension 5 degrees; right lateral flexion 5 degrees; left lateral flexion 5 degrees; right rotation 10 degrees; and left rotation 10 degrees. These numbers only include when the Veteran has pain, and do not establish the Veteran’s full range of motion. In order to be used, the examiner would need to clarify the Veteran’s full range of motion and indicate at what point the Veteran has pain. The numbers above do not meet the requirements needed for VA to make a determination because they only include pain free measurements. A remand is required so that the Agency of Original Jurisdiction (AOJ) may seek clarification of the Veteran’s range of motion from the private examiner. 38 U.S.C. § 5103A(a); See Savage v. Shinseki, 24 Vet. App. 259 (2010). The matters are REMANDED for the following action: 1. After obtaining an appropriate authorization of release of information from the Veteran, contact the Veteran’s private treatment provider regarding the July 2020 letter that detailed the Veteran’s range of motion of his lumbar spine. Provide this remand, and request that the private examiner provide the Veteran’s complete range of motion, that includes the range of motion with and without pain. 2. Then schedule the Veteran for a VA examination to determine the current severity of the Veteran’s back disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner should test the Veteran’s active motion and passive motion. If it is not possible to test passive ROM, the examiner must explain why, reconciling that finding with the findings of the May 2017 VA back conditions examiner and addressing why a contralateral joint is required to conduct passive ROM testing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above, and conducting any further development deemed necessary, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.